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Family Law

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16 AUG 2011

LOCAL AUTHORITY: R (O) v Hammersmith and Fulham London Borough Council [2011] EWCA Civ 925

(Court of Appeal; Rix, Lloyd and Black LJJ; 28 July 2011)

An autistic child had complex needs. The family argued the child should attend a residential school for 52 week placement. The authority argued that the child should be accommodated in one school for most of the year, while attending a different school (both closer to home than parents' choice) and live at home for the remainder of the time. 

At issue was whether the child should become a ‘looked after child' under s 20.  Even if the parent's right to express a preference as to the school might be relevant to accommodation under s 20, the parents' choice in this case was a private school, so parental preference was not binding, but merely a factor. The earlier tribunal ruled that the child's education did not require a residential placement. Various experts had recommended 52 week residential placement. The judge considered that a tribunal ruling had been overtaken by the authority's own assessment that a residential placement was needed. The authority had given too much weight to the tribunal ruling and had not fully considered or given sufficient weight to number of transitions inherent in the proposal, which conflicted with its own assessment that the child needed stability and structure.

On that basis the authority's decision was irrational and must be reconsidered but no mandatory order to place child at parents' choice. Both the child and authority appealed.

Child's appeal dismissed. Section 1(1) of the Children Act 1989 did not mean that in judicial review proceedings the child's welfare was paramount. Local authority refused permission to appeal.

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